From The POV Of CDLs, Who Are The Best, Worst & Most Likely On Trump’s List For SCOTUS?

November 23, 2016 (Fault Lines) — I am absolutely certain that the President-Elect wants to know what criminal defense lawyers think about his list of potential Supreme Court nominees. So, I ask you, from the perspective of criminal defense lawyers, who is the best and who is the worst from Trump’s list. Tell me also who will likely be the pick.

I was alarmed to see Canady at No.2 until I realized the list is alphabetical. His taste of crime & punishment as a House prosecutor in the Clinton impeachment led to a gig on the Florida Supreme Court. There he has been a reliable vote for the state in criminal cases. Except for that time he wrote a nice concurrence in one of my cases on a sentencing issue. He scowls a
lot from the bench, but I think that’s just his normal face.

Thanks for playing Scotus roulette. If I were a bookie, I would say don’t bet on Canady.

One, he is two old at 62. Two, he went to Yale law school–and I Trump judge pickers don’t want anyone from Harvard or Yale. Three, the judge is too close to Jeb (serving as Jeb’s former general counsel) and, what is worse, he was appointed to the Florida Supreme Court by Crist, the ultimate turncoat. Fourth, my guess is that Canady got on the list because he coined the term “partial-birth abortion” when he was in the House. All in all, Canady’s inclusion on the list is the equivalent of awarding him the Order of the Lenin.

Most likely: Judge Thomas Hardiman. Four reasons. (1) solid conservative; (2) youth, (at 51 a veritable child); (3) Third Circuit ( remember, our President-elect’s sister sits on the Third Circuit); (4) this one’s the clincher, I argued before this judge about five years ago, he called the tortured procedural history of the case “Kafkaesque” (it was), so I’m sold. Also, I argued before Justice Sotomayor when she sat on the Second. That’s the charm, so I’m convinced Judge Hardiman is it! Put your money on him, depend upon it.

Best pick: Judge Hardiman is smart, cordial, and cuts to the quick without sarcasm. So, I’ll go with him, with one exception, my dark horse candidate below.

Worst pick: I’ll reserve judgment.

Dark horse: That judge from Nebraska who told SCOTUS to STFU. President-elect Trump likes that. He likes that kind of style a lot! Yes, President-elect Trump has said his selection will be a pro-life judge, but what’s that mean anyway? President-elect Trump also said that he would have put Secretary Clinton in jail, and would appoint a special prosecutor if elected, now he says she’s suffered enough. The only concern President-elect Trump may have with that Nebraska judge is the 450 or so page decisions he writes from time to time. If he could cut it down, to say 5-7 pages, he’d move up on the list. Could easily happen. Justice Rehnquist put the gold stripes on his robe, as a nod to the Faerie Queen, start thinking seriously about what you’ll do to customize the robe. That’s very important so give it some thought.

On second thought, Judge Kethledge would be my worst pick. Very smart, young, but I found him somewhat smug and a tad sarcastic at oral argument. Anecdotal, a one time incident, but there it is. But I never hold it against anyone when they direct the sarcasm at me, never. I just want to make that point perfectly clear in the interests of fair play and full disclosure. 😎

Pryor served as a law clerk to the legal giant Judge John Minor Wisdom of the United States Court of Appeals for the Fifth Circuit from 1987 to 1988. He earned his B.A. from Northeast Louisiana University in 1984 (now University of Louisiana, Monroe) and his J.D. from Tulane University Law School in 1987, where he served as editor in chief of the Tulane Law Review. No snotty Yale or Harvard grad he.

Pryor was Alabama’s AG. He prosecuted Chief Justice Roy Moore for Moore’s Ten Commandments monument and Pryor won. He successfully argued that Moore was required to follow the ruling of a federal judge.

Pryor has said that Roe v. Wade was the “worst abomination in the history of constitutional law.” On that, he is correct (poor Harry). Even Justice Ginsburg questions whether the Court should have gotten involved at that point in our history. It goes without saying, I hope, that I think Roe v. Wade was wonderful policy but it was horribly reasoned Constitutional law.

The best thing about Pryor is his position on Ala. CJ Moore during the Ten Commandments fiasco. He didn’t agree with the decision to remove the Ten Commandments (he was wrong, BTW), but he was not going to tolerate Moore flaunting the rule of law.

I agree with your position on Roe, terrible analysis of the Constitution, but the right policy.

My actual choice would be Stacy Leeds, 45, currently the dean of the U. of Arkansas law school, member of the Cherokee Nation, former CJ of the Cherokee Supreme Court. BA – Washington U. in St. Louis, MBA – Tennessee, JD – Tulsa, LLM – Wisconsin. But she’s not going to be nominated, and especially not by Trump.

I do not mean to be too personal. But your comment and in other writings you have expressed an affection for Native Americans. Aside from being a good guy, and aside from our horrible treatment of them,what accounts for your affection and concern? All the best.

Rich

Greg Prickett

28 November 2016 at
6:03 pm -

Judge,

I’m part Menominee, possibly part Ojibwa, and also have a minuscule amount of Choctaw blood. My dad was born in Indian County, and was considered Indian for hiring purposes by the feds (under the clause of being any degree of Indian descent and being born on the rez). My granddad was taken from Wisconsin and sent to an Indian School in Douglas, Kansas, and then was sent to the Kiowa Agency in Oklahoma to work for the Indian Service. I have distant cousins that are members of either the Menominee tribe or the Grand Traverse Band of Chippewa.

Although I don’t have enough blood to be enrolled in any of the tribes, I was raised going to pow-wows, with dad explaining our heritage and background. Being from Oklahoma helped too. We rooted for the Indians in the cowboy westerns, too. It was during the time that I was growing up that the federal government tried to terminate the tribal status of the Menominee – a disaster that was overturned by President Nixon.

As a lawyer, I’m acutely aware of the continuing legal discrimination against tribal sovereignty and against Indians. Indian women are more likely to be sexually assaulted with no prosecution by the U.S. Attorney, and the tribal courts can’t prosecute unless the suspect is also Indian. The Major Crimes Act took away the ability of the tribe to handle it’s own criminals and the state and federal governments just don’t care about it.

As far as judges? There have only been three Indians who have sat on the federal bench, and only one is currently sitting. One of the three did not even know that he was Indian until after he was on the bench. All have been district judges. There have been no federal appellate judges who are Indian.

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